Criminal Code Amendment (Hizballah) Bill 2003

Bills Digest No. 170 2002-03

WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.

The Commonwealth Criminal Code provides that
an organisation can be determined to be a terrorist organisation in
two ways. A court may decide that an organisation falls within
paragraph (a) of the definition of terrorist organisation found in
subsection 102.1(1) of the Criminal Code when a terrorist
organisation offence is prosecuted. Additionally, a terrorist
organisation may be listed (1) (proscribed) by way of a
regulation made by the Governor-General. The Background section of
this Digest describes the evolution of the latter the provisions
that the Criminal Code Amendment (Hizballah) Bill 2003 (the
Hizballah Bill) seeks to amend.

The Background section also contains
information about State referrals of power over terrorism to the
Commonwealth, Commonwealth Government action against organisations
considered to be terrorist organisations and the move to ban the
Hizballah External Security Organisation and its derivative
organisations. The alternative spelling, Hezbollah , is sometimes
used.

The Hizballah Bill seeks to amend Part 5.3 of
the Commonwealth Criminal Code. Part 5.3 deals with terrorism. It
contains provisions creating terrorist act offences (Division 101),
terrorist organisation offences (Division 102) and financing of
terrorism offences (Division 103). As indicated above, Division 102
also contains provisions which enable regulations to be made
listing an organisation as a terrorist organisation in certain
circumstances.

Part 5.3 was originally inserted into the
Criminal Code by the Security Legislation Amendment (Terrorism)
Act 2002 (the Terrorism Act 2002). This legislation was part
of a package introduced by the Government to strengthen Australia s
counter-terrorism capabilities. (2) Other Bills in the
package were the Suppression of the Financing of Terrorism Bill
2002, the Criminal Code Amendment (Suppression of Terrorist
Bombings) Bill 2002, the Border Security Legislation Amendment Bill
2002 and the Telecommunications Interception Legislation Amendment
Bill 2002. All were subsequently enacted, with amendments.

As originally introduced, the Security
Legislation Amendment (Terrorism) Bill 2002 [No.2](3)
(the Terrorism Bill) would have enabled the Attorney-General to
proscribe an organisation if he or she was satisfied on reasonable
grounds that:

the organisation or one of its members had
committed or was committing a terrorist offence, irrespective of
whether a charge had been laid or conviction obtained; or

the declaration was reasonably appropriate to
give effect to a United Nations Security Council (UNSC) decision
that the organisation was an international terrorist organisation;
or

the organisation posed a danger to the security
or integrity of the Commonwealth or another country.

Ministerial proscriptions would have had an
immediate effect. There was no provision for parliamentary
scrutiny. Offences were then provided relating to proscribed
organisations. For instance, it would be an offence to be a member
of such an organisation, direct its activities, provide or receive
training or otherwise provide assistance.

The Terrorism Bill, together with the other
four Bills in the legislative package, was considered by the Senate
Legal and Constitutional Legislation Committee. The Committee
submitted a final report in May 2002, which contained a number of
recommendations. The Committee noted:

the concerns expressed by many organisations and
individuals about whether the legislative package, particularly the
Security Bill, is necessary. [And] serious reservations about the
breadth of the proposed legislation in relation to constitutional
issues, potential breaches of international law and possible
adverse effects on particular groups within the Australian
community.(4)

There was cross-party support for the view
that the proscription provisions should be rejected.(5)
The Senate Committee recommended:

(i) that proposed Division 102 in the Bill in
relation to the proscription of organisations with a terrorist
connection not be agreed to; and

(ii) that the Attorney-General review the
proscription provisions with a view to developing a statutory
procedure which:

does not vest a broad and effectively
unreviewable discretion in a member of the Executive;

restricts the proposed ground under which an
organisation may be proscribed if it has endangered or is likely to
endanger the 'security or integrity' of the Commonwealth or any
country, by defining 'integrity' as meaning 'territorial
integrity';

provides detailed procedures for revocation,
including giving a proscribed organisation the right to apply for
review of that decision;

provides for adequate judicial review of the
grounds for declarations of proscription;

more appropriately identifies and defines the
proposed offences in relation to proscribed organisations,
particularly in relation to the offence of 'assisting' such an
organisation; and

does not create offences with elements of strict
liability, given the very high proposed
penalties.(6)

On25 June 2002, the Government introduced a number of
amendments to the Terrorism Bill. Among them were amendments that
replaced the proscription regime with provisions that enabled the
Governor-General (in Council) to make a regulation specifying that
an organisation was a terrorist organisation.(7) For
instance, the Government s amendments provided that an organisation
would be a terrorist organisation if:

the Governor-General made a regulation
identifying the organisation as a terrorist organisation on the
basis that the Minister was satisfied on reasonable grounds that
the organisation was directly or indirectly engaged in, preparing,
fostering, assisting or planning the doing of a terrorist act,
or

the Governor-General made a regulation
identifying the organisation as a terrorist organisation on the
basis that the Minister was satisfied on reasonable grounds that
UNSC had made a decision relating to terrorism that identified the
organisation and the organisation was directly or indirectly
engaged in, preparing, fostering, assisting or planning the doing
of a terrorist act.

The
regulations would have been subject to the usual disallowance
procedure set out in the Acts Interpretation Act
1901(8) but contained an additional safeguard.
Proposed subsection 102.1(4) of the Government s amendments
provided that regulations would not take effect until the
disallowance period had expired.(9)

Senator Faulkner (ALP, NSW) successfully moved
amendments to the Government s amendments.(10) As a
result, the first type of listing by regulation that is, if the
Minister was satisfied on reasonable grounds that the organisation
was involved in terrorist activity was removed. This left one way
in which a regulation could be made listing a terrorist
organisation if the Minister was satisfied on reasonable grounds
about three things. First, that the UNSC had made a decision
relating to terrorism; second, that the organisation was identified
in that decision as an organisation to which the decision relates ;
and third that the organisation was directly or indirectly involved
in terrorist activity.(11)

The deferred commencement provisions for
regulations were enacted and became subsection 102.1(4) of the
Criminal Code.

The Attorney-General recently explained the
reasons for enacting legislation enabling terrorist organisations
to be listed:

Listing of organisations sends a clear and
unequivocal message to those who might involve themselves with
those organisations that if they do so they will face the full
weight of the law.

Listing also facilitates the investigation and
prosecution of those engaged in supporting or carrying out the
activities of terrorist organisations.

Given the delay and uncertainty that could be
involved in waiting to prove an organisation's engagement in a
terrorist act in court, listing organisations by regulation is a
more effective method of specifying terrorist organisations in most
cases.

Listing of organisations serves a number of
purposes.

It puts people on notice not to deal with the
listed organisation.

And it provides certainty to law enforcement
agencies that they can act against the organisation immediately,
without the significant delay that is likely in completing a
criminal prosecution.(12)

Listing an organisation by way of regulation
made under section 102.1 of the Terrorism Act effectively bans the
organisation. This is because anyone who:

directs the activities of such an
organisation(13)

is a member of such an
organisation(14)

undertakes recruiting for such an
organisation(15)

gives training to or receives training from
such an organisation(16)

receives from, or makes funds available to such
an organisation, or(17)

provides support of the sort that would help
the organisation engage in terrorist activities (as
defined)(18)

commits a criminal offence and is liable, on
conviction, to considerable penalties up to 25 years
imprisonment.

Section 102.1 of the Terrorism Act the banning
provision did not remain in its original form for long. The
Criminal Code Amendment (Terrorist Organisations) Act
2002, which commenced on 23 October 2002, repealed subsection
102.1(4). As a result, terrorist organisation regulations made by
the Governor-General no longer have their operation postponed to
the end of the disallowance period. They commence on gazettal or as
otherwise specified.

a reference of constitutional power to the
Commonwealth using section 51(xxxvii) of the Constitution to
support an effective national response to threats of transnational
crime and terrorism. (19)

At the Leaders Summit on 5 April 2002, the
Commonwealth, the States and the Territories negotiated an
Agreement on Terrorism and Multi-Jurisdictional Crime which
included an agreement for a reference of power of specific, jointly
agreed legislation. (20) It was said that the reference
of power was needed to remove any uncertainties about the scope of
the Commonwealth s constitutional power over terrorism and to
obtain secure and comprehensive national application of the federal
counter-terrorism offences. (21)

On 12 December 2002, the Criminal Code
Amendment (Terrorism) Bill 2002 was introduced into the
Commonwealth Parliament. Subsequently enacted as the Criminal
Code Amendment (Terrorism) Act 2003 (the Terrorism Act 2003),
it re-enacted Part 5.3 of the Criminal Code in order to attract the
support of State references of power.(22) In other
words, the reference of power covers the terrorist act offences in
Division 101 of the Criminal Code, the terrorist organisation
offences and banning provisions found in Division 102 and the
financing of terrorism offences contained in Division 103.

In the period since December 2002, each of the
States have passed referral legislation(23) which:

states that certain matters are referred to the Commonwealth
effectively, the text of Part 5.3 of the Commonwealth Criminal Code
and an amendment reference, and

includes termination provisions.

Each State Act contains, as a Schedule, the
words of Part 5.3 of the Commonwealth Criminal Code. Each State Act
also contains a provision stating that it is the intention of the
State Parliament that Part 5.3 can be amended by provisions of
Commonwealth Acts the operation of which is based on the
legislative powers that the Parliament of the Commonwealth has
apart from under the references. (24)

State legislation was passed and commenced over a
period of several months. Commencement dates of each State s
Terrorism (Commonwealth Powers) Act are as follows:

NSW 13 December 2002

Tasmania 1 January 2003.

South Australia 3 April 2003

Queensland 28 April 2003

Western Australia 3 May 2003

Victoria 7 May 2003.

The Commonwealth s Terrorism Act 2003, the Act
which accepted the referrals and re-enacted Part 5.3 of the
Criminal Code, commenced on 29 May 2003.

The terrorist organisation provisions of the
Terrorism Act 2002 commenced operation on 6 July 2002. Since that
time, the banning power found in section 102.1 has been used to
list 13 groups identified as terrorist organisations by the UNSC.
The first regulation(25) identifying Al Qa ida/ Islamic
Army was made on 21 October 2002. The most recent(26)
identifying Abat al-Ansar, Egyptian Islamic Jihad, the Islamic Army
of Aden, the Islamic Movement of Uzbekistan, Jaish-i-Mohammed and
Lashkar I Jhangvi was made on 11 April 2003.

As the Attorney-General has remarked, the UNSC
has only ever operated as a mechanism for identifying terrorist
organisations linked to al-Qaeda and the Taliban under resolutions
1267 and 1333. (27)

UNSC Resolution 1373 (2001) imposes a number
of obligations on Member States to suppress terrorism.
Sub-paragraph 1(c) of the Resolution requires them to:

Freeze without delay funds and other financial
assets or economic resources of persons who commit, or attempt to
commit, terrorist acts or participate in or facilitate the
commission of terrorist acts; of entities owned or controlled
directly or indirectly by such persons; and of persons and entities
acting on behalf of, or at the direction of such persons and
entities, including funds derived or generated from property owned
or controlled directly or indirectly by such persons and associated
persons and entities.

Australia has implemented this obligation via
the Charter of the United Nations Act 1945 and the Charter
of the United Nations (Terrorism and Dealings with Assets)
Regulations 2002. This legislation makes it an offence for a person
to hold assets that are owned or controlled by persons or entities
listed by the Minister for Foreign Affairs in the Gazette.
Hizballah is one of those entities.

It is beyond the scope of this Digest to discuss
in any detail the nature and activities of the Hezbollah or the
Hezbollah External Security Organisation. Readers of this Digest
should consult a Research Note produced by the
Parliamentary Library, Hezbollah
in Profile . As the Research Note points out:

Hezbollah as a whole is listed as a banned
terrorist organisation in the US and Canada, whereas the UK has
specifically only proscribed Hezbollah's 'External Security
Organisation', presumably affording some legitimacy to Hezbollah's
political wing.

The European Union has to date not proscribed
Hezbollah, despite lobbying by the UK and Germany to do so. France,
Sweden, Greece, Spain and Belgium have apparently opposed the idea.
The UN, too, has not included Hezbollah on its list of terrorist
organisations, additions to which must have a demonstrated link
with the Taliban and/or al-Qaeda in order to qualify.

Lebanon refused to freeze Hezbollah's assets in
response to a request by the US to do so in November 2001, claiming
that Hezbollah is a legitimate resistance group.
(28)

In recent weeks, the Government and the
Opposition have debated the proscription regime. In a press release
issued on 27 May 2003 the Opposition Leader, Simon Crean MP, stated
that the Prime Minister had written to him on 2 April 2003 seeking
to remove the requirement in Australian law that the listing of
terrorist organisations in Australia be predicated by listing in
the United Nations Security Council. It has been reported that the
Prime Minister lobbied the States earlier in the year hoping to
secure their support for these changes.(29)

Both the Government and the Labor Opposition
maintain that the Hezbollah External Security Organisation should
be banned. However, Mr Crean said Labor would not support the
Government s proposal for a general banning power but would instead
introduce a private member s bill naming the Hezbollah External
Terrorist Organisation as a terrorist organisation under the
Criminal Code.(30) The media reported that Mr Crean had
secured the support of the NSW, Queensland and Victorian Premiers
for his approach.(31) However, the Government rejected
the ALP model for two reasons. First, as constitutionally suspect
on the basis of the High Court s decision in the Communist
Party case.(32) Second, on the ground that a more
broadly based power was needed to list terrorist organisations in
order to respond to threats as they emerge.(33)

On 27 May 2003 the Government introduced two
Bills into the House of Representatives the Hizballah Bill and the
Criminal Code Amendment (Terrorist Organisations) Bill 2003 (see
below). The Attorney-General remarked that the Hizballah Bill would
enable the immediate issue of the security threat represented by
the terrorist wing of Hezbollah (34) to be dealt with.
Further, he said, the Government s model does not give rise to the
same constitutional uncertainties that plague the opposition s
proposal. (35)

On 2 June 2003, Mr Crean introduced a Private
Member s Bill, the Criminal Code Amendment (Hezbollah External
Terrorist Organisation) Bill 2003. Apart from things such as
spelling, the name by which the relevant wing of Hizballah is
identified and the long title of the Bill, this Bill is identical
in substance to the Government s Hizballah Bill.

Much of the public response to the proposal to
ban Hezbollah in editorials and opinion pieces has been
positive.(36) The Attorney-General has said that ASIO
has regularly reported that there are within Australia supporters
of external terrorist organisations. Hezbollah is an external
terrorist organisation. (37) Mr Crean was given a
security briefing about Hezbollah and, although unable to disclose
the contents of the briefing, has said that Groups such as the
Hezbollah External Security Organisation do represent a clear and
present danger to the values and freedoms that we all hold dear.
(38) However, Michael Organ MP (Greens, Cunningham)
stated during debate on the Hezbollah Bill that he was concerned
that sufficient evidence has not been presented to this parliament
or to the Australian people with regard to why this organisation
needs to be black-listed (39) And some segments of the
Australian Lebanese community are concerned that the Government s
claims are alarmist.(40) Professor Rohan
Gunaratna,(41) a commentator on international terrorist
organisations, remarks that:

[Hezbollah] has raised funds and disseminated
propaganda, both in South East Asia and in Australia, but its scale
of activity has been reduced since 1999.

Hezbollah poses a significant threat to
international security, and I think Australia, as a democracy,
should take that into consideration in the proscription of groups,
not look at only Australian interests.(42)

Hezbollah has denied that it poses a threat to
Australians, calling Australian assertions about it baseless and
untrue. It says its only concern is the resistance of the Israeli
occupation of Lebanon. (43)

As stated above, on the same day that the
Hizballah Bill was introduced into the Parliament, the
Attorney-General also introduced the Criminal Code Amendment
(Terrorist Organisations) Bill 2003 (Terrorist Organisations Bill
2003). The latter is designed to give the Government a broad power
to list organisations as terrorist organisations and to remove the
current requirement that the UNSC must first have identified an
organisation as a terrorist organisation before a proscription
regulation can be made by the Governor-General. However, the
Government does not expect the Terrorist Organisations Bill 2003 to
pass the Parliament. The Attorney-General remarked in his Second
Reading Speech for that Bill:

the opposition has indicated that it will not
support the bill.

In such circumstances, the government is
introducing a second bill, the Criminal Code Amendment (Hizballah)
Bill 2003 that will allow the terrorist wing of Hezbollah to be
listed in regulations, providing the statutory criteria for listing
is met.

This bill [the Terrorist Organisations Bill] is
intended to be complementary, not an alternative to the [Hizballah]
bill.

Together they create a legislative framework that
deals with the immediate issue of the security threat represented
by the terrorist wing of Hezbollah, and the longer term issue of
how Australia can act independently of the Security Council in
relation to our domestic criminal laws.

While we support the opposition s indication that
it will support the government s Hezbollah specific bill, the
opposition has indicated that it will continue to obstruct passage
of our first bill.

The government intend to vigorously pursue passage
of our first bill.(44)

The fate of the Terrorist Organisations Bill
is yet to be decided, so whether it could become a double
dissolution trigger is a matter of speculation. It is noteworthy,
however, that four potential double dissolution bills already
exist.(45) Should the Government wish to take all or
some of these to a double dissolution election, Parliament would
have to be dissolved by 11 August 2004.(46) The latest
date for a double dissolution election is 16 October
2004.(47)

Clause 3 of the Bill provides
that the Schedule commences on 29 May 2003 ie retrospectively.

Item 1 of the Schedule
inserts a definition of Hizballah organisation into subsection
102.1(1) of the Criminal Code. A Hizballah organisation means the
Hizballah External Security Organisation or a derivative
organisation.

Item 2 enables regulations to
be made by the Governor-General which list the Hizballah External
Security Organisation and derivative organisations as terrorist
organisations.

Item 3 sets out
pre-conditions for the making of such regulations and describes how
they are to operate [proposed subsections
102.1(7)-(14)]. For instance, it inserts proposed
subsection 102.1(7) into the Criminal Code. The effect of
proposed subsection 102.1(7) is that before the
Governor-General can make a regulation that lists a Hizballah
organisation as a terrorist organisation, the Minister must be
satisfied on reasonable grounds that the organisation is directly
or indirectly engaged in, preparing, planning, assisting in or
fostering the doing of a terrorist act (whether or not the
terrorist act has occurred or will occur).

Proposed subsection 102.1(8)
provides that regulations listing a Hizballah organisation expire
two years after they take effect, unless earlier repealed. However,
new regulations can be made.

Proposed subsection 102.1(9)
effectively allows a Hizballah organisation to be de-listed if the
Minister ceases to be satisfied that the organisation is directly
or indirectly engaged in or assisting in (etc) terrorist acts. The
way that de-listing works is that the Minister publishes a
declaration in the Gazette. Once the declaration is made,
the regulations cease to have effect. The Minister s de-listing is
not subject to parliamentary review ie it is not a disallowable
instrument. An organisation that has been de-listed can be
re-listed by a Hizballah specific regulation ie one made under
proposed paragraph (c) of the definition of terrorist organisation
[proposed subsection 102.1(10)].

Proposed subsection 102.1(11)
effectively allows the retrospective listing of a Hizballah
organisation , triggered by a public announcement. This can happen
so long as:

a regulation is made within 60 days after the
Criminal Code Amendment (Hizballah) Act 2003 receives
Royal Assent, and

the Minister is satisfied that a Hizballah
organisation is a terrorist organisation, and

a public announcement is made by the Minister
or another Minister that a listing regulation will be made,
and

the announcement includes a statement that the
regulation will be back-dated to the date of the
announcement.

The public announcement must be published on
the Internet and in a newspaper circulating in each State and
Territory [proposed subsection 102.1(10)]. The
timeframe for publication is not specified. Proposed
subsection 102.1(11) and the commencement date in
clause 3 (29 May 2003) contemplate that a public
announcement will be made before the passage of the Hizballah Bill.
On 5 June 2003, the Attorney-General made a public announcement for
the purposes of proposed subsection 102.1(11) in
relation to the Hezbollah External Security Organisation. Among
other things the announcement states:

ASIO advises that the terrorist wing of Hizballah
is an organisation with global reach which poses a security threat
to Australian interests. It is also well known that the Hizballah
External Security Organisation has been responsible for numerous
terrorist attacks against Western and other interests dating back
to the 1980s.

ASIO advises that it continues to have the
capacity and support necessary for further operations, and is
assessed to have global reach. ASIO also advises that there is
evidence to suggest that it has links into
Australia.(48)

If the Hizballah Bill is passed by the
Parliament and regulations listing the Hizballah External Security
Organisation as a terrorist organisation are made within 60 days
after the Bill receives Royal Assent then the Organisation will be
banned from 5 June 2003. However, a public announcement alone in
the absence of legislation does not empower the Executive to
undertake coercive activity in relation to a Hizballah
organisation.

Proposed subsection 102.1(13)
deals with what occurs if a regulation ceases to have effect
because it has been repealed or the organisation has been de-listed
under proposed subsection 102.1(9). Any penalty or
punishment incurred will stand and investigations and legal
proceedings can be continued or enforced.

Proposed subsection 102.1(14)
ensures that a Hizballah organisation can be listed either in the
fashion described above or by way of a regulation made after the
existing process, predicated on a UNSC decision, has occurred.

The Security Legislation Amendment
(Terrorism) Bill 2002 [No. 2], as originally introduced, enabled
the Attorney-General to declare an organisation to be a proscribed
organisation in certain circumstances.

Many organisations and individuals who
appeared before the Senate Legal and Constitutional Legislation
Committee opposed the proposed proscription powers in the Terrorism
Bill 2002 as anti-democratic, contrary to international human
rights standards, contrary to the rule of law and effectively
unreviewable.(49) There were also suggestions that the
proscription provisions could be constitutionally unsound. Thus, it
was said that proscription could be unconstitutional because it
offended the doctrine in the Communist Party case.
Further, it was suggested that theBillmight offend constitutional guarantees such as the implied
freedom of political communication.

The Communist Party Dissolution Act
1950 did a number of things. Its recitals stated that the
Communist Party and its members engaged in activities designed to
overthrow government and compromise the defence ofAustralia. It declared the Australian Communist
Party unlawful and dissolved it.(50) Further, it
empowered the Governor-General in Council to declare certain
associations to be unlawful associations, if the body fell within
the statutory definition(51) and if its continued
existence would be prejudicial to the security and defence of the
Commonwealth or to the execution and maintenance of the
Constitution or of the laws of the Commonwealth. (52) An
association so declared had 28 days from the date of the
declaration s gazettal to apply to a court to have the declaration
set aside.(53) Certain consequences automatically flowed
from the Governor-General s declarations for instance, an unlawful
association was dissolved by force of the Act.(54) The
Act also created a number of offences. Thus, it was an offence to
be a member of an unlawful association, contribute to it or
participate in or direct its activities.(55)

The Commonwealth has no head of power
over communism or criminal laws or terrorism for that matter. In
the Communist Party case, the High Court struck down the
Communist Party Dissolution Act for lack of constitutional power.
In particular, the Court held that the legislation could not be
supported under the executive power (section 61) combined with the
express incidental power in section 51(xxxix). Nor could it be
supported by the defence power in a time of ostensible peace or
under an implied power giving the Commonwealth power to make laws
for its own preservation. Submissions were also made to the High
Court that the legislation infringed the separation of powers but
this argument was not considered in detail by the Court.

As stated above, it is the Government s
view that theHizballahBilldoes not raise the same Communist Party case
uncertainties that plague[d] the opposition s [original] proposal
to introduce legislation specifically listing Hezbollah as a
terrorist organisation.(56) Do any constitutional
questions remain?

There are both differences and
similarities between theHizballahBilland the Communist Party Dissolution Act. It
can be argued that problems associated with the Communist Party
case and any other potential constitutional difficulties have
been overcome in the case of theHizballahBillin various ways. For instance:

the scope of the defence power, a constitutionally elastic
power, has expanded due to the current international
situation

the external affairs power and other constitutional powers
also support the legislation

a regulation banning a Hizballah
organisation is judicially reviewable in ways that a declaration
under the Communist Party Dissolution Act was not. In the
Communist Party case, the High Court was concerned that
judicial review of the Governor-General s opinion was not
available. In contrast, decisions of the Attorney-General about
whether an organisation is a terrorist organisation can be reviewed
under the Administrative Decisions (Judicial Review) Act
1977 and the regulations themselves may be reviewable on
limited grounds. Further, unlike the Communist Party Dissolution
Act, theHizballahBilldoes
not itself directly impose penalties on particular organisations or
individuals. Terrorist organisations are not dissolved by
theHizballahBilland their
members are not excluded from public employment by legislative
fiat. The determination of criminal liability for terrorist
organisation offences is a matter for the courts.

in any event, if the States approve the
Hizballah amendments, as contemplated by referral of power
arrangements, any constitutional deficits in Commonwealth
constitutional power will be cured. If necessary, given the
commencement date of theHizballahBill, State approval might, presumably, be
back-dated.

In response to these arguments, it might be
said that:

if the
operation of the defence power has expanded it has not expanded
sufficiently to support theHizballahBill

judicial review
under the Administrative Decisions (Judicial Review) Act provides
an unsatisfactory way of scrutinising the Attorney-General s
decisions because it does not encompass merits review. Further, as
with the offences in the Communist Party Dissolution Act, terrorist
organisation offences give the courts little work to do. For
instance, the offence of being a member of a terrorist organisation
will only require the issue of membership to be made
out.

approval of the Hizballah amendments by
the States and Territories (if that is needed) cannot save
legislation which offends constitutional prohibitions on
Commonwealth power for example, it will not save Commonwealth
legislation that infringes the separation of powers (for instance,
legislation that usurps federal judicial power by acting as an Act
of Attainder(57)) or impermissibly restricts the implied
constitutional freedom of political communication

As indicated earlier in this Digest,
amendments to Part 5.3 of the Criminal Code need the approval of a
majority of States and Territories (and at least four States). This
does not stop the Commonwealth from legislating, within its own
constitutional capacities, to amend Part 5.3 but does mean that any
curable deficits in constitutional power that should be plugged
will need State/Territory approval. An Intergovernmental Agreement
determining processes for State/Territory approval of Part 5.3
amendments is yet to be finalised.(58) At the time of
writing, it did not appear that State/Territory approval had been
obtained.

TheHizballahBillenables regulations to be made about the
Hizballah External Security Organisation and organisations derived
from that organisation . A number of questions might be asked about
these provisions. First, is it possible to easily distinguish
between a person who might have associations with Hizballah and a
person with relevant associations with the Hizballah External
Security Organisation? Further, the meaning of derived is
uncertain. Might it encompass organisations once associated with
the Hizballah External Security Organisation or with similar
philosophical or political roots but which no longer have those
associations? How widely does this arm of the definition of
Hizballah organisation extend the range of organisations that can
be listed?

There is a presumption against the
retrospective operation of statutes.(59) The principle
of non-retrospectivity for criminal laws is enshrined in
international as well as domestic law.(60) One view of
the reasons for the presumption against retrospectivity was
expressed byTooheyJin
Polyukhovich v. Commonwealth:

Protection against retroactive laws protects
a particular accused against potentially capricious state action.
But the principle also represents a protection of a public
interest. This is so, first, in the sense that every individual is,
by the principle, assured that no future retribution by society can
occur except by reference to rules presently known; and secondly,
it serves to promote a just society by encouraging a climate of
security and humanity.(61)

However, this is not to say that
retrospective laws cannot be made within constitutional
limits(62) or that their passage is never
justified.(63)

Reference has already been made to the
fact that proposed subsection 102.1(11) and
clause 3 enable regulations listing a Hizballah
organisation to operate retrospectively from the date of a public
announcement by the Minister. Criminal penalties may then attach to
persons who fall within the terrorist organisation offences under
Division 102 of the Criminal Code. The Bill contemplates that a
public announcement could be made prior to the passage of the
Bill(64) and will be effective to backdate the operation
of a proscription regulation so long as the regulation is made
within 60 days after the Hizballah Bill receives Royal Assent. As
stated earlier, the Attorney-General made a public announcement
on5 June 2003.

The numbering of the Terrorism Bill, [No.2] ,
resulted from the fact that the original Bill, introduced on 12
March 2002, was withdrawn the following day and the [No. 2] Bill
substituted. The reason was a problem with House of Representatives
Standing Orders, which arose because the title of the original Bill
and that referred to in the Attorney-General s presentation notice
differed. See Peter Slipper MP, House of Representatives,
Hansard, 13 March 2002, pp. 1138 9.

With the Coalition and Opposition party
members outlining the framework of an alternative model, and
Democrat Senator Brian Greig stating, The Australian Democrats
strongly recommend that this power [proscription] be removed from
the legislation entirely. ibid, p. 85.

ibid., pp. vii viii.

See Senate Journals, 26 June 2002,
p. 470.

The Acts Interpretation Act 1901
contains gazettal and tabling requirements that apply to
Commonwealth regulations and contains disallowance provisions.
These normally work in the following way. Regulations made under a
primary statute must be notified in the Gazette and laid
before each House of Parliament within 15 sitting days of being
made. If the tabling requirements are not complied with, the
regulations cease to have effect. There is then a further period of
15 sitting days in which a notice of motion can be given to
disallow the regulation. If either House (normally the Senate)
passes a resolution within this timeframe disallowing the
regulation, then it ceases to have effect. Disallowance can also be
deemed to have occurred. This happens if a notice of motion, given
within the 15 sitting day period, is not withdrawn or called on
within a further 15 sitting days. In this case, the regulation is
deemed to have been disallowed. In other words, the disallowance
period run for as little as 15 sitting days after tabling to as
much as 30 sitting days after tabling (if deemed disallowance
occurs).

Australian Communist Party v.
Commonwealth (1951) 83 CLR 1. Presumably, the Attorney-General
s view is based on similarities between any proposal to enact
legislation simply proscribing a named organisation as a terrorist
organisation and the Communist Party Dissolution Act 1950,
struck down by the High Court for want of constitutional power.
Among other things, the Communist Party Dissolution Act
1950 contained recitals stating that the Australian Communist
Party and communists were working to overthrow established
government in Australia by revolutionary means and engaging in
criminal acts designed to dislocate industries vital to the
security and defence of Australia and then a provision declaring
the Australian Communist Party to be an unlawful association and
dissolving it by force of the Act (section 4).

See, for example, Attorney-General moves to
ban Hezbollah in Australia , AM, 27 May 2003. And also
Government gives in principle support to bill listing Hezbollah as
terrorist organisation , The World Today, 29 May
2003.

See, for example, Bars to the power of one ,
The Australian, 27 May 2003; Hezbollah ban justified,
urgent and necessary , The Australian, 29 May 2003; The
wrong way to fight terrorism , The Age, 30 May 2003;
Australia is right to ban Hezbollah. Here s why , The Age,
2 June 2003.

Australia wants new power to list Hezbollah
as terror group , Associated Press, 27 May 2003.

Subsection 4(1), Communist Party
Dissolution Act 1950. There were also provisions that enabled
the Governor-General to make a declaration that a person was a
Communist. A limited appeal mechanism was provided for. See section
9.

Affiliates of the Australian Communist Party,
bodies supporting communism or bodies whose policies were wholly or
substantially directed, shaped or influenced by communists who used
the body to advocate or carry out communist objectives subsection
5(1), Communist Party Dissolution Act 1950.

Subsections 5(1) & (2), Communist
Party Dissolution Act 1950.

Subsection 5(4), Communist Party
Dissolution Act 1950. This appeal could be made only on one
ground that the body was not encompassed by the statutory
description of organisations under communist control found in
subsection 5(1). The ground of declaration that the organisation
was a body whose existence was prejudicial to the security and
defence of the Commonwealth etc could not be appealed.

There is a variety of views in Australian
jurisprudence about what might constitute an Act of Attainder. In
Polyukhovich v. Commonwealth (1991) 172 CLR 501 at 537,
Mason CJ suggested that for legislation to constitute an Act of
Attainder it would need to include an express declaration of the
guilt of an individual or individuals (at 537). There are also
suggestions in that case that if the legislature itself, expressly
or impliedly, determines guilt or innocence, then this is an
interference with the judicial process. See Dawson J at 685-6. For
a discussion of Acts of Attainder see Leslie Zines, The High
Court and the Constitution, 4th ed, 1997 and Fiona
Wheeler, The Separation of Federal Judicial Power. A Purposive
Analysis , PhD Thesis, 1999.

However, the South Australian referral
legislation explicitly states how approval for amendments to Part
5.3 (and Chapter 2 of Criminal Code) can be signified. It provides
that a gazette notice published by a designated person for a State
or Territory, such as the Governor, Premier or Chief Minister, that
the State or Territory has approved an amendment of Part 5.3 is
conclusive evidence that State or Territory has approved the
amendment.

For instance, article 15(1) the International
Covenant on Civil and Political Rights, to which Australia is a
party, states that No one shall be held guilty of any criminal
offence on account of any act or omission which did not constitute
a criminal offence, under national or international law, at the
time when it was committed.

(1991) 172 CLR 501 at: 688 9.

See Polyukhovich v. Commonwealth
(1991) 172 CLR 501.

(1991) 172 CLR 501 at: 689 per Toohey J.

But not before 29 May 2003. Note that a
public announcement alone in the absence of the passage of the Bill
and the making of regulations would not support coercive action by
the Executive Government or its agencies in relation to Hizballah
organisations or their members.

Jennifer Norberry
11 June 2003
Bills Digest Service
Information and Research Services

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